Thursday, July 04, 2013

Obamacare in action substitutes "Rule by Rulers" for Rule of Law

The term "Rule of Law" may be discussed in at least three different contextual frameworks. The formal or so called thin interpretation states that law must be prospective,well known, and have the features of equality and certainty. The law must be clear and apply to everyone. The substantive or so called thick interpretation says that the law protects individual rights. In the functional approach rule of law is defined by contrast with rule of man. FA Hayek talks about the rule of law as contrasted with arbitrary government edicts or proclamations.

Whatever framework you prefer, the manner in which Obamacare so far has been administered by the government exemplifies rule by arbitrary governmental order or as Michael Cannon phrased it in his Cato commentary "Rule by Rulers" (see here). Quoting Mr. Cannon:

"...the IRS’s unilateral decision to
delay the employer mandate is the latest indication that we do not live
under a Rule of Law, but under a Rule of Rulers who write and rewrite
laws at whim, without legitimate authority, and otherwise compel
behavior to suit their ends. Congress gave neither the IRS nor the president any authority to delay the imposition of the Patient Protection and Affordable Care Act’s employer
mandate. In the section of the law creating that mandate, Congress
included several provisions indicating the mandate will take effect in 2014. In case those provisions were not clear enough, Section 4980H further clarifies:

(d) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2013.

It is hard to see how the will of the people’s elected
representatives – including President Obama, who signed that effective
date into law – could have been expressed more clearly, or how it could
be clearer that the IRS has no legitimate power to delay the mandate."

Read all of Cannon's essay in which he lists some of the various ways that the current administration has behaved like "rulers" exercising powers not delegated by the statute to protect Obamacare's image and to lessen any negative impact it may have on their supporters (think unions) and on elections (think Medicare advantage and the 2014 mid term congressional and fallout from the disruption of the employer mandate.)

So both houses of congress pass a law,with great fanfare the President signs the law and then SCOTUS declares most the law is constitutional. And now an administrative agency simply ignores the letter and intent of the law and postpones a portion of it even though it has no statutory authority to do so. Will Madisonian checks and balances kick it to play and somehow order the IRS to obey the law? I think not- most of the times legality or fear of judicial action does not impede the current trend of ruling by rulers.More and more no one complains and the courts are not called upon. The barking dogs in the blog world and the non Main Stream Media bark away (along with the occasional legislator) and the ruler caravan moves on.

Addendum: 7/5/2013 It just gets more and more unclear as more analyses are offered. See here for a detailed discussion about the issue of what exactly is being postponed.Does the administration really have the authority to do whatever they think they did?Does anyone have legal standing to bring legal action to force the administration of a statute? And even if the courts found for the plaintiff ( if one could be found) could the court really force the executive to do anything? I'll bet that James Madison thought his checks and balances and "sufficient virtue" of the American people would have worked out better.

Addendum: 7/8/2013. More delays in Obamacare. In this posting from the Washington Post we learn that some elements of Obamacare will be on the "honor system", at least for a while.Somehow I have a problem thinking about the IRS overseeing a honor system arrangement.